Dred Scott case: the Supreme Court
decision (1857)
There are two leading questions presented by the record:
1) Had the Circuit Court of the United States jurisdiction to hear
and determine the case between these parties? And
2) If it had jurisdiction, is the judgment it has given erroneous or
not?
...
The plaintiff [Dred Scott]... was, with his wife and children,
held as slaves by the defendant [Sanford], in the State of Missouri;
and he brought this action in the Circuit Court of the United States
for [Missouri], to assert the title of himself and his family to
freedom. The declaration is . . . that he and the defendant are
citizens of different States; that... he is a citizen of Missouri, and
the defendant a citizen of New York. ...
The question is simply this: Can a negro, whose ancestors were
imported into this country, and sold as slaves, become a member of
the political community formed and brought into existence by the
Constitution of the United States, and as such become entitled to
all the rights, and privileges, and immunities, guarantied by that
instrument to the citizen? One of which rights is the privilege of
suing in a court of the United States in the cases specified in the
Constitution....
The words "people of the United States" and "citizens" are
synonymous terms, and mean the same thing. They both describe
the political body who ... form the sovereignty, and who hold the
power and conduct the Government through their
representatives.... The question before us is, whether the class of
persons described in the plea in abatement [people of Aftican
ancestry] compose a portion of this people, and are constituent
members of this sovereignty? We think they are not, and that they
are not included, and were not intended to be included, under the
word "citizens" in the Constitution, and can therefore claim none
of the rights and privileges which that instrument provides for and
secures to citizens of the United States. On the contrary, they were
at that time considered as a subordinate and inferior class of
beings, who had been subjugated by the dominant race, and,
whether emancipated or not, yet remained subject to their
authority, and had no rights or privileges but such as those who
held the power and the Government might choose to grant them. ...
The court think the affirmative of these propositions cannot be
maintained. And if it cannot, [Dred Scott] could not be a citizen of
the State of Missouri, within the meaning of the Constitution of the
United States, and, consequently, was not entitled to sue in its
courts. It is true, every person, and every class and description of
persons, who were at the time of the adoption of the Constitution
recognized as citizens in the several States, became also citizens of
this new political body; but none other; it was formed by them, and
for them and their posterity, but for no one else. And the personal
rights and privileges guarantied to citizens of this new sovereignty
were intended to embrace those only who were then members of
the several State communities, or who should afterwards by
birthright or otherwise become members, according to the
provisions of the Constitution and the principles on which it was
founded.... ...
It becomes necessary, therefore, to determine who were
citizens of the several States when the Constitution was adopted....
... [T]he legislation and histories of the times, and the language
used in the Declaration of Independence, show, that neither the
class of persons who had been imported as slaves, nor their
descendants, whether they had become free or not, were then
acknowledged as a part of the people, nor intended to be included
in the general words used in that memorable instrument.
It is difficult at this day to realize the state of public opinion in
relation to that unfortunate race, which prevailed in the civilized
and enlightened portions of the world at the time of the Declaration
of Independence, and when the Constitution of the United States
was framed and adopted....
They had for more than a century before been regarded as
beings of an inferior order, and altogether unfit to associate with
the white race, either in social or political relations; and so far
inferior, that they had no rights which the white man was bound to
respect; and that the negro might justly and lawfully be reduced to
slavery. . . . He was bought and sold, and treated as an ordinary
article of merchandise and traffic, whenever a profit could be made
by it. This opinion was at that time fixed and universal in the
civilized portion of the white race. It was regarded as an axiom in
morals as well as in politics, which no one thought of disputing, or
supposed to be open to dispute; and men in every grade and
position in society daily and habitually acted upon it in their
private pursuits, as well as in matters of public concern, without
doubting for a moment the correctness of this opinion.
And in no nation was this opinion more firmly fixed or more
uniformly acted upon than by the English Government and English
people. They not only seized them on the coast of Africa, and sold
them or held them in slavery for their own use; but they took them
as ordinary articles of merchandise to every country where they
could make a profit on them, and were far more extensively
engaged in this commerce than any other nation in the world.
The opinion thus entertained and acted upon in England was
naturally impressed upon the colonies they founded on this side of
the Atlantic. And, accordingly, a negro of the African race was
regarded by them as an article of property, and held, and bought
and sold as such, in every one of the thirteen colonies which united
in the Declaration of Independence, and afterwards formed the
Constitution of the United States. The slaves were more or less
numerous in the different colonies, as slave labor was found more
or less profitable. But no one seems to have doubted the
correctness of the prevailing opinion of the time.
The legislation of the different colonies furnishes positive and
indisputable proof of this fact....
The province of Maryland, in 1717, passed a law declaring
"that if any free negro or mulatto intermarry with any white
woman, or if any white man shall intermarry with any negro or
mulatto woman, such negro or mulatto shall become a slave during
life, excepting mulattoes bom of white women, who, for such
intermarriage, shall only become servants for seven years. . . ."
The other colonial law to which we refer was passed by
Massachusetts in 1705. It is entitled "An act for the better
preventing of a spurious and mixed issue," &c.; and it provides,
that "if any negro or mulatto shall presume to smite or strike any
person of the English or other Christian nation, such negro or
mulatto shall be severely whipped......
... [T]hese laws ... show, too plainly to be misunderstood, the
degraded condition of this unhappy race. They were still in force
when the Revolution began, and are a faithful index to the state of
feeling towards the class of persons of whom they speak, and of
the position they occupied throughout the thirteen colonies, in the
eyes and thoughts of the men who framed the Declaration of
Independence and established the State Constitutions and
Governments. They show that a perpetual and impassable barrier
was intended to be erected between the white race and the one
which they had reduced to slavery, and governed as subjects with
absolute and despotic power, and which they then looked upon as
so far below them in the scale of created beings, that
intermarriages between white persons and negroes or mulattoes
were regarded as unnatural and immoral, and punished as crimes,
not only in the parties, but in the person who joined them in
marriage. And no distinction in this respect was made between the
free negro or mulatto and the slave, but this stigma, of the deepest
degradation, was fixed upon the whole race.
We refer to these historical facts for the purpose of showing
the fixed opinions concerning that race, upon which the statesmen
of that day spoke and acted ... in order to determine whether the
general terms used in the Constitution of the United States, as to
the rights of man and the rights of the people, was intended to
include them, or to give to them or their posterity the benefit of any
of its provisions.
The language of the Declaration of Independence is equally
Conclusive: ...
We hold these truths to be self-evident: that all men are created
equal; that they are endowed by their Creator with certain
unalienable rights; that among them is life, liberty, and the pursuit
of happiness; that to secure these rights, Governments are
instituted, deriving their just powers from the consent of the
governed.
The general words above quoted would seem to embrace the
whole human family, and if they were used in a similar instrument
at this day would be so understood. But it is too clear for dispute,
that the enslaved African race were not intended to be included,
and formed no part of the people who framed and adopted this
declaration; for if the language, as understood in that day, would
embrace them, the conduct of the distinguished men who framed
the Declaration of Independence would have been utterly and
flagrantly inconsistent with the principles they asserted; and
instead of the sympathy of mankind, to which they so confidently
appeared, they would have deserved and received universal rebuke
and reprobation.
Yet the men who framed this declaration were great men -high in literary acquirements -- high in their sense of honor, and
incapable of asserting principles inconsistent with those on which
they were acting. They perfectly understood the meaning of the
language they used, and how it would be understood by others; and
they knew that it would not in any part of the civilized world be
supposed to embrace the negro race, which, by common consent,
had been excluded from civilized Governments and the family of
nations, and doomed to slavery. They spoke and acted according to
the then established doctrines and principles, and in the ordinary
language of the day, no one misunderstood them. The unhappy
black race were separate from white by indelible marks, and laws
long before established, and were never thought of or spoken of
except as property, and when the claims of the owner or the profit
of the trader were supposed to need protection.
This state of public opinion had undergone no change when the
Constitution was adopted, as is equally evident from its provisions
and language.... ...
[There] are two clauses in the Constitution which point directly
and specifically to the negro race as a separate class of persons,
and show clearly that they were not regarded as a portion of the
people or citizens of the Government then formed.
One of these clauses reserves to each of the thirteen States the
right to import slaves until the year 1808.... And by the other
provision the States pledge themselves to each other to maintain
the fight of property of the master, by delivering up to him any
slave who may have escaped from his service, and be found within
their respective territories.... And these two provisions show,
conclusively, that neither the description of persons therein
referred to, nor their descendants, were embraced in any of the
other provisions of the Constitution; for certainly these two clauses
were not intended to confer on them or their posterity the blessings
of liberty, or any of the personal rights so carefully provided for
the citizen.
No one of that race had ever migrated to the United States
voluntarily; all of them had been brought here as articles of
merchandise. The number that had been emancipated at that time
were but few in comparison with those held in slavery; and they
were identified in the public mind with the race to which they
belonged, and regarded as a part of the slave population rather than
the free. It is obvious that they were not even in the minds of the
framers of the Constitution when they were conferring special
rights and privileges upon the citizens of a State in every other part
of the Union. ...
It would be impossible to enumerate ... the various laws,
marking the condition of this race, which were passed from time to
time after the Revolution, and before and since the adoption of the
Constitution of the United States. In addition to those already
referred to, it is sufficient to say, that Chancellor Kent, whose
accuracy and research no one will question, states in ... his
Commentaries ... that in no part of the country except Maine, did
the African race, in point of fact, participate equally with the
whites in the exercise of civil and political rights.
The legislation of the States therefore shows, in a manner not
to be mistaken, the inferior and subject condition of that race at the
time the Constitution was adopted, and long afterwards, . . . and it
is hardly consistent with the respect due to these States, to suppose
that they regarded at that time, as fellow-citizens and members of
the sovereignty, a class of beings whom they had thus stigmatized;
... and upon whom they had impressed such deep and enduring
marks of inferiority and degradation; or, that when they met in
convention to form the Constitution, they looked upon them as a
portion of their constituents, or designed to include them in the
provisions so carefully inserted for the security and protection of
the liberties and rights of their citizens. It cannot be supposed that
they intended to secure to them rights, and privileges, and rank, in
the new political body throughout the Union, which every one of
them denied within the limits of its own dominion. More
especially, it cannot be believed that the large slaveholding States
regarded them as included in the word citizens, or would have
consented to a Constitution which might compel them to receive
them in that character from another State. For if they were so
received, and entitled to the privileges and immunities of citizens,
it would exempt them from the operation of the special laws and
from the police regulations which they considered to be necessary
for their own safety. It would give to persons of the negro race,
who were recognized as citizens in any one State of the Union, the
right to enter every other State whenever they pleased, singly or in
companies, without pass or passport, and without obstruction, to
sojourn there as long as they pleased, to go where they pleased at
every hour of the day or night without molestation, unless they
committed some violation of law for which a white man would be
punished; and it would give them the full liberty of speech in
public and in private upon all subjects upon which its own citizens
might speak; to hold public meetings upon political affairs, and to
keep and carry arms wherever they went. And all of this would be
done in the face of the subject race of the same color, both free and
slaves, and inevitably producing discontent and insubordination
among them, and endangering the peace and safety of the State.
It is impossible, it would seem, to believe that the great men of
the slaveholding States, who took so large a share in framing the
Constitution of the United States, and exercised so much influence
in procuring its adoption, could have been so forgetful or
regardless of their own safety and the safety of those who trusted
and confided in them....
To all this mass of proof we have still to add, that Congress has
repeatedly legislated upon the same construction of the
Constitution that we have given....
The first of these acts is the naturalization law ... [of] March
26, 1790, [which] confines the right of becoming citizens "to aliens
being free white persons." . . .
Another of the early laws of which we have spoken, is the first
militia law, which was passed in 1792, at the first session of the
second Congress. The language of this law is equally plain and
significant.... It directs that every "free able-bodied white male
citizen" shall be enrolled in the militia. The word white is
evidently used to exclude the African race, and the word citizen to
exclude unnaturalized foreigners; the latter forming no part of the
sovereignty, owing it no allegiance, and therefore under no
obligation to defend it. The African race, however, born in the
country, did owe allegiance to the Government, whether they were
slave or free; but it is repudiated, and rejected from the duties and
obligations of citizenship in marked language.
The third act to which we have alluded is even still more
decisive; it was passed as late as 1813, (2 Stat., 809) and it
provides: "That from and after the termination of the war in which
the United States are now engaged with Great Britain, it shall not
be lawful to employ, on board of any public or private vessels of
the United States, any person or persons except citizens of the
United States, or persons of color, natives of the United States."
Here the line of distinction is drawn in express words. Persons
of color, in the judgment of Congress, were not included in the
word citizens, and they are described as another and different class
of persons, and authorized to be employed, if born in the United
States....
The conduct of the Executive Department of the Government
has been in perfect harmony upon this subject with this course of
legislation. The question was brought officially before the late
William Wirt, when he was the Attorney General of the United
States, in 1821, and he decided that the words "citizens of the
United States" were used in the acts of Congress in the same sense
as in the Constitution; and that free persons of color were not
citizens, within the meaning of the Constitution and laws; and this
opinion has been confirmed by that of the late Attorney General,
Caleb Cushing, in a recent case, and acted upon by the Secretary of
State, who refused to grant passports to them as "citizens of the
United States....
No one, we presume, supposes that any change in public
opinion or feeling, in relation to this unfortunate race, in the
civilized nations of Europe or in this country, should induce the
court to give to the words of the Constitution a more liberal
construction in their favor than they were intended to bear when
the instrument was framed and adopted. Such an argument would
be altogether inadmissible in any tribunal called on to interpret it.
If any of its provisions are deemed unjust, there is a mode
prescribed in the instrument itself by which it may be amended;
but while it remains unaltered, it must be construed now as it was
understood at the time of its adoption. It is not only the same in
words, but the same in meaning, and delegates the same powers to
the Government, and reserves and secures the same rights and
privileges to the citizen; and as long as it continues to exist in its
present form, it speaks not only in the same words, but with the
same meaning and intent with which it spoke when it came from
the hands of its framers, and was voted on and adopted by the
people of the United States. Any other rule of construction would
abrogate the judicial character of this court, and make it the mere
reflex of the popular opinion or passion of the day. This court was
not created by the Constitution for such purposes. Higher and
graver trusts have been confided to it, and it must not falter in the
path of duty.... ...
And upon a full and careful consideration of the subject, the
court is of opinion, that.... Dred Scott was not a citizen of Missouri
within the meaning of the Constitution of the United States, and
not entitled as such to sue in its courts; and, consequently, that the
Circuit Court had no jurisdiction of the case, and that the judgment
on the plea in abatement is erroneous....
... [I]t appears affirmatively on the record that he is not a
citizen, and consequently his suit against Sandford was not a suit
between citizens of different States, and the court had no authority
to pass any judgment between the parties. The suit ought, in this
view of it, to have been dismissed by the Circuit Court, and its
judgment in favor of Sandford is erroneous, and must be reversed.
It is true that the result either way, by dismissal or by a
judgment for the defendant, makes very little, if any, difference in
a pecuniary or personal point of view to either party. But the fact
that the result would be very nearly the same to the parties in either
form of judgment, would not justify this court in sanctioning an
error in the judgment which is patent on the record, and which, if
sanctioned, might be drawn into precedent, and lead to serious
mischief and injustice in some future suit.
We proceed, therefore, to inquire whether the facts relied on by
the plaintiff entitled him to his freedom. ...
But there is another point in the case which depends on State
power and State law. And it is contended, on the part of the
plaintiff, that he is made free by being taken to Rock Island, in the
Sate of Illinois, independently of his residence in the territory of
the United States; and being so made free, he was not again
reduced to a state of slavery by being brought back to Missouri.
Our notice of this part of the case will be very brief; for the
principle on which it depends was decided in this court, upon much
consideration, in the case of Strader et al. v. Graham [1850]. In that
case, the slave had been taken from Kentucky to Ohio, with the
consent of the owner, and aftewards brought back to Kentucky.
And this court held that their status or condition, as free or slave,
depended upon the laws of Kentucky, when they were bourght
back into that State, and not of Ohio; and that this court had no
jurisdiction to revise the judgement of a State court upon its own
laws. This was the point directly before the court, and the decision
that this court had no jurisdiction turned upon it, as will be seen by
the report of the case.
So in this case. As Scott was a slave when taken into the State
of Illinois by his owner, and was there held as such, and brought
back in that charcter, his staus, as free or slave, depended on the
laws of Missouri, and not of Illinois....
Upon the whole, therefore, it is the judgment of this court, that
it appears by the record before us that the plaintiff in error is not a
citizen of Missouri, in the sense in which that word is used in the
Constitution; and that the Circuit Court of the United States, for
that reason, had no juisdiction in the case, and could give no
judgment in it. Its judgment for the defendant must, consequestly,
be reversed, and a mandate issued, directing the suit to be
dismissed for want of jurisdiction.